B-140272, AUG. 24, 1959

B-140272: Aug 24, 1959

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JUNE 27. THE RECORD FURTHER SHOWS THAT SINCE YOUR RELEASE FROM ACTIVE DUTY YOU HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY (AS CAPTAIN WITH OVER 30 YEARS OF CREDITABLE SERVICE) YOU WERE RECEIVING AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY ON FEBRUARY 12. SINCE THE PERCENTAGE OF YOUR DISABILITY WAS DETERMINED TO BE ONLY 30 PERCENT. IT APPEARS THAT YOU HAVE BEEN PAID RETIRED PAY EQUAL TO THAT WHICH COULD BE PAID UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 AND YOU NOW CONTEND THAT THE RECORD OF YOUR SERVICE AND PHYSICAL AFFLICTIONS ENTITLE YOU TO A HIGHER DISABILITY RATING THAN 30 PERCENT.

B-140272, AUG. 24, 1959

TO CAPTAIN PAUL R. STALNAKER (MC) USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1959, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368.

THE RECORDS SHOW THAT SUBSEQUENT TO YOUR TRANSFER TO THE RETIRED LIST OF OFFICERS OF THE UNITED STATES NAVY ON MARCH 1, 1931--- APPARENTLY FOR PHYSICAL DISABILITY--- YOU SERVED ON ACTIVE DUTY FROM MARCH 20, 1942, TO FEBRUARY 12, 1944, AT WHICH TIME YOU HAD COMPLETED OVER 30 YEARS OF CREDITABLE SERVICE. THE RECORD FURTHER SHOWS THAT SINCE YOUR RELEASE FROM ACTIVE DUTY YOU HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY (AS CAPTAIN WITH OVER 30 YEARS OF CREDITABLE SERVICE) YOU WERE RECEIVING AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY ON FEBRUARY 12, 1944, WITH THE APPLICABLE INCREASES PROVIDED BY SUBSEQUENT LEGISLATION. ON AUGUST 30, 1954, YOU ELECTED TO RECEIVE RETIRED PAY "BASED ON LAWS IN EFFECT PRIOR TO 1 OCTOBER 1949,"RATHER THAN RETIRED PAY BASED ON THE PERCENTAGE OF YOUR DISABILITY, UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, SINCE THE PERCENTAGE OF YOUR DISABILITY WAS DETERMINED TO BE ONLY 30 PERCENT.

IT APPEARS THAT YOU HAVE BEEN PAID RETIRED PAY EQUAL TO THAT WHICH COULD BE PAID UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 AND YOU NOW CONTEND THAT THE RECORD OF YOUR SERVICE AND PHYSICAL AFFLICTIONS ENTITLE YOU TO A HIGHER DISABILITY RATING THAN 30 PERCENT. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO SECTION 414 (A) OF THE 1949 ACT WHICH PROVIDES THAT "ALL DUTIES, POWERS, AND FUNCTIONS INCIDENT TO THE DETERMINATION OF * * * PERCENTAGE OF DISABILITY AT TIME OF SEPARATION FROM ACTIVE SERVICE * * * SHALL BE VESTED IN THE SECRETARY CONCERNED.' UNDER SUCH STATUTORY PROVISIONS, WE ARE WITHOUT AUTHORITY TO QUESTION THE DETERMINATION OF PHYSICAL DISABILITY WHICH HAS BEEN MADE IN YOUR CASE. ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.